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Chronic condition or new injury?
Two cases recent cases decided by the West Virginia Supreme Court of Appeals address the frequent debate in claims management of whether an injured employee's disabling condition was caused by a preexisting chronic condition or a new injury.
In West Virginia University v. Jess Shaffer, No. 18-1067, (W. Va. July 9, 2020) (memorandum decision), the West Virginia Supreme Court of Appeals reversed and remanded the October 30, 2018 decisions of the Board of Review with instructions to reinstate the December 9, 2016, January 16, 2017, and August 10, 2017 claims administrator decisions. The Court's decision demonstrates the importance of discovery of evidence of treatment for preexisting chronic conditions.
In a 6-0 Memorandum Decision, the Court found the Board of Review's decision was so clearly wrong even when all inferences are resolved in favor of the Board's findings, that there is insufficient evidence to support the decision. The Court found the medical evidence clearly shows the claimant had bilateral shoulder degenerative changes several years before the compensable injury, including MRI evidence showing degenerative joint disease with impingement of the rotator cuff causing tendonitis, treatment notes showing rotator cuff tendonitis on the left and degenerative joint disease and impingement on the right, and a physician's record review opinion these conditions indicate a predisposition to degenerative rotator cuff tears.
The court also pointed to the claimant's family physician's deposition testimony that it is difficult for him to determine if the rotator cuff tears are the result of degeneration or trauma. He testified he usually refers patients to a specialist to make a determination, and further stated he did not discuss prior shoulder issues with claimant. The Court noted the family physician was the only physician to opine the injury resulted in bilateral rotator cuff tears. The Court contrasted the opinion of an orthopedist who found chronic degenerative changes throughout both shoulders. The Court also noted two physicians reviewing the medical history had the same findings related to preexisting degenerative changes in the shoulders.
Another decision by the West Virginia Supreme Court demonstrates the importance of documenting preexisting chronic conditions in an injured employee. InKathleen J. Crockard v. Wheeling Hospital, Inc., No. 18-1026, (W. Va. July 9, 2020) (memorandum decision), the Court affirmed the October 29, 2018 decision of the Board of Review which affirmed the May 16, 2018 Administrative Law Judge Decision. The May 16, 2018 ALJ Decision had reversed the claims administrator's November 3, 2017 order rejecting the claim. The issue for appeal was compensability of the claim on a no-lost-time basis.
Claimant suffered a lumbar sprain injury lifting a box while at work. She was immediately taken to the emergency room and diagnosed with a lumbar sprain, but it was indicated she would not be off work for four or more days. While the specific reason for the claim administrator's rejection of the claim is not identified by the Court, it likely was due to evidence claimant had a prior low back injury and MRI evidence of a herniated lumbar disc that predated the injury. The ALJ reversed the claims administrator's rejection of the claim and held the claim compensable for lumbar sprain/strain on a no-lost-time basis. Relying onJordan v. State Workers' Compensation Commissioner, 156 W. Va. 59, 191 S.E.2d 497 (1972), the ALJ found that just because an employee has a preexisting condition, does not mean he or she cannot suffer a new injury in the course of employment. When there is evidence of a preexisting injury, a new claim is compensable when it is the result of a definite, isolated, fortuitous occurrence.
The ALJ determined that the evidence shows the claimant had at least two prior lower back injuries, one of which occurred in the course of her employment. She reported right lower extremity pain prior to the injury at issue, but had no complaints of lower back pain at that time. The ALJ determined that the evidence shows the claimant was lifting a box when she sustained a lower back injury and was escorted to the emergency room, satisfying the requirements of a definite, isolated, fortuitous event. Claimant was diagnosed with a low back strain, and it was indicated that she would not be off work for four days or more. The ALJ found that she eventually underwent L4-5 microdiscectomy surgery for a herniated lumbar disc. The disc was herniated prior to the compensable injury, as seen on MRI, and is therefore unrelated to the claim. The claimant's continued temporary total disability was determined to be the result of the non-claim-related surgery. The ALJ therefore found that while the claim was compensable for a lumbar sprain, temporary total disability benefits should not be granted. The Board of Review adopted the findings of fact and conclusions of law of the Office of Judges and affirmed its Order.
The Court noted that pursuant to West Virginia Code § 23-4-1, employees who receive injuries in the course of and as a result of their covered employment are entitled to benefits. For an injury to be compensable it must be a personal injury that was received in the course of employment, and it must have resulted from that employment. Barnett v. State Workmen’s Compensation Commissioner, 153 W. Va. 796, 172 S.E.2d 698 (1970). Temporary total disability benefits will be granted when the period of disability is greater than three days. W. Va. Code § 23-4-1c. A claimant must submit evidence that he or she is unable to return to employment as a result of the compensable injury.
In this case, the Court found it is clear that the claimant sustained a lumbar sprain in the course of and resulting from her employment. However, MRIs taken shortly before and after the injury show that the claimant's herniated lumbar disc preexisted the compensable injury and is therefore not compensable. The Court found the claimant's continued inability to work is the result of her lower back surgery, necessitated by the noncompensable herniated disc. Accordingly, the claim was properly held compensable on a no-lost-time basis for lumbar sprain.
Article by Dill Battle
If you have questions or need more information, please call or e-mail Dill Battle at 304.340.3823 email@example.com.
Spilman Thomas & Battle, PLLC
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